Cabinet handbook - Section 6: Legislation and the law

Summary

6.1 Legislation governs when and how the Welsh Ministers can exercise functions, and on what matters the Senedd and the Welsh Government are able to make law. The system of law making has changed frequently over time, but the current settlement is set out primarily in the Government of Wales Act 2006, as amended by the Wales Act 2017.

6.2 The settlement allows the Senedd to make laws on any matters that are not specifically reserved to the UK Parliament. In other words, policy responsibility is devolved by default, unless otherwise stated. However, despite the mechanism for determining what is devolved and what is not now being similar to that applicable in Scotland and Northern Ireland, the breadth of the topics devolved is still significantly narrower.

6.3 Both primary and secondary legislation can be made in Wales. Primary legislation is usually used to make significant policy changes, either by amending existing law or creating wholly new law. Bills go through a detailed scrutiny process in the Senedd including the opportunity to amend the provisions of the legislation.

6.4 The Welsh Ministers also have specific powers conferred upon them to make secondary legislation. Those powers can be delegated by the Senedd or by the UK Parliament. Secondary legislation has different scrutiny mechanisms in the Senedd and is usually used to set out the more detailed, technical or procedural elements of policy in order for it to be fully implemented, or in emergencies when swift action is required, as with some of the regulations made in response to the coronavirus since Spring 2020.

6.5 The question of whether or not the Senedd or the Welsh Ministers have the power to make legislation in specific circumstances is referred to as a question of competence – i.e. whether it is within the devolved competence of the Senedd or the Welsh Ministers. Partly because the Senedd’s legislative competence is relatively narrow, ministers’ executive competence does not always correspond to it and can be wider in scope. So, some of the executive powers have always been wider in scope and in certain circumstances the Westminster Parliament has continued to devolve secondary legislative powers to the Welsh Ministers in areas where the Senedd would not be entitled to pass a Bill (such as in civil contingencies).

What is reserved and what is devolved

6.6 There is no complete list of what subjects are devolved, as the settlement now operates on the basis that everything is devolved unless stated otherwise. However, core devolved policy areas include:

• education
• health
• local government
• housing
• transport
• planning
• economic development
• certain taxes, such as Land Transaction Tax
• social services
• culture
• Senedd and local elections
• Welsh language
• environment
• agriculture and rural affairs

6.7 Reserved matters that the Senedd cannot legislate directly upon, include the constitution, defence, national security, immigration, justice and policing. The Senedd cannot legislate directly on these issues; however, that does not mean the Welsh Government cannot have a policy on them, and the full list of reserved matters can be found in Schedule 7A to the Government of Wales Act 2006, and is also available here.

6.8 There are other significant restrictions on the Senedd’s competence in Schedule 7B – for example Acts of the Senedd may not amend certain “protected enactments” such as the Human Rights Act, and they may not impose functions on reserved authorities (such as UK government departments, the Crown Prosecution Service or the Health and Safety Executive) without UK ministers’ consent.

How does it work in practice?

6.9 The Senedd may not make legislation that is outside its competence. Whether provisions are within competence depends on the purpose and effect of the proposed legislation.

6.10 If a Bill is passed and there is concern as to whether it is within competence, there is a 4-week period beginning with the passing of the Bill during which the Counsel General or the UK government’s Attorney General may refer the Bill to the Supreme Court for a ruling on whether the Bill or any of its provisions are within the legislative competence of the Senedd. In those circumstances the Bill cannot be submitted for Royal Assent until the Supreme Court has ruled.

6.11 No similar legally enforceable restriction applies to the UK Parliament to prevent it from legislating in areas within the Senedd’s devolved competence. However, the Government of Wales Act 2006 incorporates the Sewel Convention – expressed as “It is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Senedd.”

6.12 Ministers facilitate the process of establishing whether the Senedd will consent to UK Bills which engage the Sewel Convention. They do so by laying Legislative Consent Memorandums (LCMs) and tabling motions for the Senedd to debate. The UK Legislation Team in the Constitution and Welsh Tribunals Division support policy officials across Welsh Government on LCMs and seek to ensure that cross-cutting constitutional issues are fed into related advice to ministers.

6.13 In so far as ministerial functions are concerned, including making subordinate legislation, ministers must act within the confines of the specific power conferred upon them.

6.14 The Counsel General is the final and authoritative legal adviser to the Welsh Government and oversees its representation in the courts. The Counsel General is not a Welsh Minister but is a member of the Welsh Government and may attend and participate in Cabinet meetings by invitation of the First Minister.

6.15 The Counsel General is the Welsh Government’s Law Officer and is subject to and must act in accordance with the Welsh Government’s Ministerial Code which amongst other matters sets out the Counsel General’s relationship with Cabinet colleagues.

6.16 The Counsel General is accountable to the Senedd for the exercise of functions conferred directly on the Counsel General (including the power to undertake legal proceedings for the promotion or protection of the public interest, to refer to the Court questions concerning the legislative competence of the Senedd or to participate in proceedings for the determination of devolution issues).

6.17 The Counsel General has a range of statutory functions deriving from both the Government of Wales Act 2006 (as amended) and subject-specific legislation (for example social care), including the following:

• Referring Senedd Bills to the Supreme Court where there are competence questions
• A duty to make Welsh law accessible and to keep it under review
• Instituting or defending litigation involving the Welsh Ministers
• Bringing certain prosecutions
• Undertaking the role of “qualified person” for the purposes of the Freedom of Information Act

6.18 The Counsel General is also responsible for:

• Ensuring that the government complies with the rule of law when exercising functions
• Advising the First Minister, Welsh Ministers and Deputy Welsh Ministers on a broad range of legal issues and providing legal opinions where appropriate
• Advising on legislative competence (including Convention rights) in relation to proposed Senedd Bills and amendments during the progress of Bills
• Advising on Bills that are to be commenced early or make retrospective provision.

Primary and subordinate legislation

6.19 Bills go through a detailed scrutiny process in the Senedd including the opportunity to amend the provisions of the legislation.

6.20 Primary legislation may give powers to the Welsh Ministers (and on occasion other bodies) to make subordinate legislation, to set out the technical and procedural elements of the policy in order for it to be fully implemented.

6.21 Subordinate legislation is also used in emergencies when very swift action is required, as a statutory instrument made under emergency powers can be drafted, enacted and brought into force in a matter of hours (for example regulations made in response to the coronavirus pandemic).

Agreeing and monitoring the legislative programme

6.22 The legislative programme is the collection of government-proposed legislation to be introduced into the Senedd. Cabinet ultimately agrees the legislative programme.

6.23 The First Minister will deliver an annual legislative programme and legislative statement, announcing those Bills that would be introduced by the government in the subsequent 12 months.

Lead ministers for Bills

6.24 Should ministers wish to pursue the development of legislation to address a particular policy proposal, officials within their department will need to submit a legislative proposal to begin the process for inclusion within the formal Legislative Programme. Ministers should prioritise their Bill proposals if seeking multiple slots in the legislative programme.

6.25 Once Cabinet has agreed the inclusion of a Bill in the legislative programme, the First Minister will write to the lead minister setting out a ‘Legislation Plan’ that outlines:

1. the policy and scope of the Bill, including any changes to it.
2. the timetable of the Bill, including any changes to it.
3. the date of introduction of the Bill into the Senedd, and
4. proposed government amendments to the Bill once it has been introduced.

6.26 Arrangements should be put in place for ministers to monitor the progress of legislation within their portfolios on a frequent basis.

Role of the Legislation Division

6.27 Responsibility for preparing and managing the legislative programme on behalf of the First Minister sits with the Legislation Division. The role of the Legislation Division is to:

• Plan and manage the Legislative Programme in line with government priorities.
• Determine and set the timetable for each Bill and for the whole legislative programme, for agreement by ministers.
• Support the organisation’s overarching governance arrangements for legislation.
• Manage and deploy the central pool of Bill Managers.
• Develop the organisation’s capabilities and capacity to deliver primary and secondary legislation, through training, events, guidance and resources.
• Provide advice and support on legislation to officials, lead ministers and special advisers as required.
• iaise with the Senedd Commission on Welsh legislation.

6.28 The Legislation Division can provide written briefing or briefing sessions on any aspects of legislative processes and procedures for individual ministers.

Bill preparation

6.29 Each Bill is delivered by a Bill team, which is generally made up of:

• Senior Responsible Officer/ Bill Facilitator, a Bill Manager and policy lead(s) and officials – responsible for developing the policy proposals for the Bill and engaging with the Minister and Special Adviser on shaping and agreeing to policy proposals, political handling, managing the scrutiny process and dealing with internal and external engagement.
• Legal Services (LS) - subject lawyers responsible for advising on the legal matters and legislative competence, to inform the development of the policy to be given effect in the Bill and instructing the drafters of the Bill.
• Office of the Legislative Counsel (OLC) - responsible for drafting the Bill, a process which involves testing the coherence of the instructions to help refine the policy, and advising on matters of legislative process, law and policy which arise.
• Translators – responsible for translating the Bill and supporting documentation, and alongside OLC ensure equivalence of the Bill’s provisions in both languages.

6.30 The process of preparing a Bill can be iterative, particularly early on. For certain Bills a couple of years may be required, while for others 8 to 12 months may be more appropriate. The key phases of work will involve:

• Developing the policy, including consultation with stakeholders.
• Instructing the legislative counsel.
• Drafting the Bill and the Explanatory Memorandum in Welsh and English.
• Clearances prior to introduction - the lead minister, Counsel General and the First Minister clear Senedd Bills for introduction, and the First Minister also clears the accompanying Explanatory Memorandum. Pre-introduction assessment meetings are usually held to enable ministers to discuss a Bill and its supporting documentation ahead of formal agreement to introduce.
• Determination - The Bill and most supporting documents are sent to the Presiding Officer of the Senedd for their determination on legislative competence before the Bill is introduced.

6.31 The following table outlines the key phases of Bill scrutiny once a Bill is introduced to the Senedd (more detail on the Senedd Bill process can be found in a guide on the Senedd’s website). A Bill can take between 6 to 12 months to complete its passage, depending on its size and complexity. If required standing orders provide options to expedite scrutiny:

Stage and activity:

• Introduction - Bill introduced and announced in Welsh and English (Written and Oral Statements made by the Lead Minister in Plenary).
• Stage 1 - Consideration of the Bill by a subject Committee of the Senedd, as well as by the committees with responsibility for constitutional and legislative affairs, and finance.
• General principles at end of Stage 1 - The Senedd is asked to agree the general principles of the Bill, in a Plenary debate and vote (if agreed the Bill proceeds to Stage 2, if not agreed the Bill falls).
• Financial Resolution Motion - The Senedd is asked to agree that any costs of the Bill in its current form, or as amended later, can be met from the Welsh Consolidated Fund, in a Plenary debate and vote.
• Stage 2 - Detailed consideration by a Committee of the Senedd (the Bill can be amended during this stage).
• Stage 3 - Detailed consideration by Plenary (the Bill can be amended during this stage).
• Stage 4 - Senedd is asked to pass the Bill as amended (if agreed the Bill proceeds towards Royal Assent, if not agreed the Bill is rejected)
• ‘Period of intimation’ - This is a 4-week period beginning with the passing of the Bill. During this time the Counsel General or the Attorney General to the UK government may refer the Bill to the Supreme Court for a ruling on whether the Bill or any of its provisions are within the legislative competence of the Senedd. During the same period the Secretary of State (for Wales) may also make an order under certain grounds to prevent the Bill from being submitted to His Majesty for Royal Assent.
• Royal Assent - When the Senedd has agreed the final text of the Bill and the period of intimation has ended, the Bill is submitted for Royal Assent (whereupon the Bill will become an Act).

6.32 A minister will be asked to make (‘sign’) an item of subordinate legislation. Signing is now usually an electronic process. The legislation becomes law at the point that it is signed by the minister, even though most legislation will come into force at a later date.

6.33 The Senedd scrutiny procedure (if any) that applies to subordinate legislation is usually set out in the parent Act (the primary legislation containing the powers that allow the Welsh Ministers to make the subordinate legislation). Legal Services will advise of what procedure, if any, the subordinate legislation must follow.

6.34 The 2 most commonly used procedures are:

• Negative Procedure – for subordinate legislation that may be made and come into effect unless objected to by the Senedd. The legislation is laid, and members have a set period in which to table, debate and vote on a motion to annul the item;
• Affirmative Procedure – where the Senedd must approve the proposed subordinate legislation. This can be as:
  • Draft affirmative: Senedd approval must be gained before the legislation can be made and come into effect
  • Made affirmative: the legislation can be made, and possibly come into force, before the Senedd is asked to approve it. If it is not approved within a set period, it falls.

6.35 A Senedd committee will be designated to scrutinise and report on all subordinate legislation laid before the Senedd, to assist members in their decision making.

UK Bills

6.36 Where a UK Bill includes provisions which apply to Wales in a devolved area, there is a need to seek the Senedd’s consent for the UK Parliament to legislate on the devolved matter. The Senedd’s consent is provided by means of a legislative consent motion (LCM) which is debated in Plenary.

UK statutory instruments (SIs)

6.37 In the same way that LCMs may be needed for UK Bills, the Senedd’s standing orders set out certain formal consent processes for UK-made secondary legislation where it amends primary legislation within competence. Such consent is granted via a statutory instrument consent motion (SICM). Further, some powers granted to UK government ministers are only exercisable with the consent of the Welsh Ministers, and Welsh Government routinely update the Senedd where this is the case. The UK Legislation Team in the Constitution and Welsh Tribunals Division can provide support and advice wherever UK ministers propose to exercise secondary legislative powers in relation to devolved issues.

Complexity

6.38 Developing legislation is complex and time-consuming. Developing policy for a change in the law requires a detailed technical and practical understanding of the existing position, an appreciation of the impact of the likely proposed change, and expertise to implement the reform both legally and administratively. This requires extensive consultation, comparative evaluation and a comprehensive understanding of the current law. Detailed analysis is needed to turn ideas into law, and this is often difficult because of the complexity of the legislative landscape.

6.39 Considerable work also can be required to develop subordinate legislation, and the supporting documentation like the Explanatory Memorandum. In some cases, this can be equivalent to the preparation of a Bill.

Welsh law

6.40 The UK statute book is vast, made up of around 5,000 Acts (mainly of the UK Parliament but also, increasingly, of the devolved legislatures) and more than 100,000 Statutory Instruments (subordinate legislation). Amongst these, there is different law for Wales, England, Scotland and Northern Ireland, often in the same provisions. Identifying the law is often difficult. The context for making Welsh legislation is made more complex because there is no separate legal jurisdiction for Wales. This constitutional anomaly means the law in Wales can be particularly inaccessible.

6.41 In making legislation there is a need to be conscious of the long-term goal of producing ‘stand-alone’ and separate law for Wales wherever possible, rather than amending existing legislation which generally applies also to England. The Legislation (Wales) Act 2019 requires the Welsh Government to implement a programme of work to make Welsh law more accessible and the goal is to produce Codes of Welsh Law for Wales in devolved areas. Doing this will involve developing consolidation Bills as well as taking decisions when promoting reform Bills to draft the Bill in such a way as to contribute to the process of codifying the law.

Rule of law

6.42 The nature of the Welsh devolution settlement often raises difficulties in establishing whether all of the provisions proposed fall within the legislative competence of the Senedd. As well as establishing devolved competence there is also a need to consider whether the prior consent of the UK government may be required before a Bill can proceed. Similarly in making subordinate legislation ministers must also ensure that what is done falls within the power conferred by the legislature.

6.43 It is important that the Welsh Government acts lawfully at all times. Wherever there is any doubt as to whether legislation is within the competence of the Senedd, or within the powers conferred upon ministers, there must be a credible argument that it does so. This is the minimum required before other matters, such as the likelihood of challenge, can be taken into account. This is a matter upon which the Counsel General provides advice, working in conjunction with the Legal Services Department and the Office of the Legislative Counsel.

Lessons learnt

6.44 Experience and lessons learnt since 2011 suggest that Bill projects can suffer from a number of recurring issues that should be avoided if practicable.

6.45 Early in the Bill development process it is easy to underestimate how difficult it is to develop new legislation and how long it takes. This generally manifests itself in three critical (and related) ways: (1) insufficient resource being allocated to the project, (2) a lack of appreciation of the level of detailed analysis required to turn what are often high-level ideas into workable and comprehensive legislative propositions, and (3) insufficient time being allowed between the start of the process and the indicative date for Senedd introduction.

6.46 These issues can be compounded by those developing Bills often seeking to address as many problems as they can in one go, leading to large multi-topic Bills being proposed. As well as making the Bills less easy to manage and complete, this also makes Bills less easy to navigate in the Senedd (as they can overwhelm both Ministers and Committees) and makes them more vulnerable to amendment (as procedural rules on scope can’t be effectively applied due to the breadth of the subject matter).

6.47 Finally, experience shows that problems can arise in implementing legislation after it has been passed. There can be a tendency to concentrate on the Bill development process while neglecting to plan and resource the subsequent tasks needed to make the new law operational. This can result in reform not being in place, or not being complete, for some time after a Bill is passed. Wherever possible reform through legislation should be looked at as a whole, from start to finish – initial consultation and policy thinking through to practical implementation on the ground – rather than as a “Bill process” in isolation from its intended impact.